The opinion of the court was delivered by: Glenn T. Suddaby, United States District Judge
MEMORANDUM-DECISION and ORDER
Currently before the Court, in this pro se civil rights action filed by Derrick Pride ("Plaintiff") against Summit Apartments ("Defendant"), are Defendant's motion for summary judgment and Plaintiff's cross-motion for summary judgment. (Dkt. Nos. 28, 30.) For the reasons set forth below, Defendant's motion is granted in part and denied in part without prejudice, and Plaintiff's cross-motion is denied without prejudice.
Generally, liberally construed, Plaintiff's Complaint alleges that in late June of 2008, while he was employed by Defendant, in Syracuse, New York, Defendant violated Plaintiff's following rights in the following manner: (1) his rights under the Fourteenth Amendment and 42 U.S.C. § 1983 by discriminating against him because of his race under color of state law, and (2) his rights under Title VII of the Civil Rights Act of 1964, as amended, by terminating his employment based on his race. (See generally Dkt. No. 1 [Plf.'s Compl.].) Familiarity with the factual allegations supporting these claims in Plaintiff's Complaint is assumed in this Memorandum-Decision and Order, which is intended primarily for review by the parties. (Id.)
B. Undisputed Material Facts
The following material facts have been asserted and supported by Defendant in its Local Rule 7.1 Statement, and not denied by Plaintiff in a Local Rule 7.1 Response. (Compare Dkt. No. 28, Attach. 4 [Def.'s Rule 7.1 Statement] with Dkt. No. 30 [Plf.'s Opp'n Papers, omitting a Rule 7.1 Response].) Plaintiff received specific notice of the consequences of failing to file a Local Rule 7.1 Response. (Dkt. No. 28, Attach.1.) As a result, the facts asserted by Defendant have effectively been admitted by Plaintiff pursuant to Local Rule 7.1(a)(e).*fn1
Defendant is a privately owned limited liability company organized under the laws of Indiana and authorized to do business in New York. Since 2006, Defendant has provided low-income housing in the Syracuse, New York, area. Defendant is not a public or quasi-public entity. Defendant is privately owned and operated. Defendant provides "section 8" housing through a program administered by the United States Department of Housing & Urban Development ("HUD"). In that respect, a portion of the rents received by Summit are paid pursuant to a contract with HUD.
The decisions respecting the hiring and/or firing of Defendant's employees are made by the respective supervisory agents of Defendant and are not subject to the input, influence or review of any federal, state or local government entity. Defendant sets its own standards for the hiring and/or firing of employees. In 2007, Defendant's highest number of employees in New York State, whether full time or part time, was fourteen (14).*fn2 In 2008, Defendant's highest number of employees in New York State, whether full time or part time, was nine (9).*fn3
Plaintiff was employed by Defendant in 2007 and 2008 as a custodian. As a custodian he was responsible for the cleaning of five buildings rented by Defendant's tenants. Plaintiff was terminated from his employment on or around June 27, 2008. According to correspondence from Defendant to Plaintiff at the time, Defendant's decision to terminate Plaintiff was based upon Plaintiff's inability to perform his job duties in a satisfactory fashion.*fn4
On or around August 25, 2008, Plaintiff filed a complaint against Defendant with the New York State Division of Human Rights. Plaintiff's complaint alleged that his termination was motivated by racial discrimination. After duly investigating, the Division of Human Rights found the allegations in Plaintiff's complaint to be unsupported by the relevant facts. On or around April 30, 2009, the United States Equal Employment Opportunity Commission adopted the findings of the New York State Division of Human Rights.
On July 30, 2009, Plaintiff commenced the instant action by filing a complaint (the "Complaint"). The Complaint seeks relief pursuant to both 42 U.S.C. § 1983 and 42 U.S.C. § 2000e et seq. Defendant's answer to the Complaint (the "Answer") was timely filed on September 17, 2010. The Answer raises certain affirmative defenses, including that Defendant was not acting "under color of state law" pursuant to 42 U.S.C. § 1983, and that Defendant is not an "employer" as defined by 42 U.S.C. § 2000e(b). In addition, the Answer states that Plaintiff was terminated from his employment for legitimate, non-discriminatory reasons.
Familiarity with the remaining undisputed material facts of this action, as well as the disputed material facts is assumed in this Decision and Order, which (again) is intended primarily for review by the parties. (Id.)
C. Defendants' Motion and Plainiff's Cross-Motion
Generally, in support of its motion for summary judgment, Defendant argues as follows:
(1) Plaintiff's claim under 42 U.S.C. § 1983 fails because he has failed to show any state action;
(2) Plaintiff's Title VII claim fails because Defendant never had more than 14 employees during the statutorily applicable time period and is thus not a covered employer pursuant to 42 U.S.C. § 2000e(b); and (3) both of Plaintiff's claims must fail because he cannot meet his initial burden under either of the burden-shifting frameworks applied to Title VII cases. (See generally Dkt. No. 28, Attach. 5 [Defs.' Memo. of Law].)
Generally, in Plaintiff's response to Defendant's motion for summary judgment, he argues as follows: (1) Plaintiff asserts that Defendant acted under color of law; (2) Defendant provided documentation for its employees in only New York State and not for any of its employees in Indiana, which may bring the total number of employees above the threshold required under 42 U.S.C. § 2003e(b); and (3) Plaintiff has produced sufficient evidence to meet his initial burden or to at least create a genuine dispute as to any material fact of his prima facie case for racial discrimination. (See generally Dkt. No. 30 [Plf.'s Opp'n Memo. of Law].) Plaintiff also cross-moves for summary judgment on each of his claims. (Id.)
Generally in its reply, Defendant argues as follows: (1) because Plaintiff failed to include a statement of material facts in his response, the facts provided in Defendant's Local Rule 7.1 Statement should be deemed to be admitted; (2) Plaintiff's response fails to raise a dispute as to any material fact on the question of state action, which supports dismissal of Plaintiff's claim under 42 U.S.C. § 1983; (3) because Defendant has no employees in Indiana, just in New York, Defendant is not a covered employee pursuant to 42 U.S.C. § 2000e(b); and (4) Plaintiff's allegations in his response do not meet his ...